HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stanley Galas Applicant
-and-
Workplace Safety and Insurance Board and Mark Evans Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: Galas v. Workplace Safety and Insurance Board
WRITTEN SUBMISSIONS
Workplace Safety and Insurance Board and Mark Evans, Respondents: Gurjit Brar, Counsel
1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), and specifically with the respondents’ request that the Application be dismissed, in whole or in part, or deferred.
2The applicant alleges that he was subjected to discrimination on the grounds of race, disability, sex and sexual solicitation or advances. He alleges that this discrimination occurred during a hearing before a Workplace Safety and Insurance Board (“WSIB”) Appeals Resolution Officer. That hearing was held to consider the applicant’s objection to decisions of WSIB claims adjudicators which found he was not entitled to benefits for “traumatic mental stress” under the Workplace Safety and Insurance Act, 1997 S.O. 1997, Chapter 16 Schedule A (the “WSIA”). The Appeals Resolution Officer found that the applicant was not entitled to benefits under the WSIB policies concerning psychological disability and mental stress.
3The applicant alleges that the Appeals Resolution Officer made various procedural rulings that were discriminatory and not appropriate. He also alleges that the Appeals Resolution Officer’s decision was discriminatory. He believes that the decision would have been different if he was a woman. In the Application the applicant indicated that he has filed an appeal with the Workplace Safety and Insurance Appeals Tribunal, but there was no information about the status of that appeal. While the Application also listed race and disability as grounds, no specifics regarding these grounds are provided in the Application.
4The respondents filed a Request for Order During Proceedings asking that the Tribunal defer consideration of the Application pending the outcome of the appeal at the Workplace Safety and Insurance Appeals Tribunal.
5In Interim Decision 2010 HRTO 1082, I found that further information was required. I directed the respondents to file a full Response and to provide information about the status of the applicant’s appeal and any other preliminary issues. The respondents filed a Response and indicated that it did not know the status of the applicant’s appeal. In the Response and a subsequent Request for Order During Proceedings, the respondents asked that the Application be deferred or dismissed in whole or in part.
6The applicant did not reply to the Response or the Request for Order During Proceedings and the time for doing so has now passed.
Background
7The details of the applicant’s history with his employer and the WSIB are not completely clear from the Application. However, the respondents have provided a copy of a letter that the applicant sent after he had received the decision of the Appeals Resolution Officer. That letter sets out the applicant’s experiences at work. He alleges that he was subject to various unpleasant experiences. These included use of offensive sexual remarks by supervisors and others. The applicant alleged that when he reciprocated with similar language, he was disciplined but that the instigators were not. He believes that if the same remarks had been made to a female employee, the person making the remarks would have been disciplined or fired.
8At various times, and especially at a grievance settlement meeting before an arbitrator, he felt harassed and intimidated to such an extent that it felt to him like an assault. The applicant went off work and filed a claim for benefits with the WSIB. The WSIB considered the applicant’s entitlement to benefits under its “mental stress” policy and concluded that he was not entitled to benefits.
9The applicant objected to that decision and the matter came before the Appeals Resolution Officer. According to the applicant’s letter to the Appeals Resolution Officer, at the hearing the applicant was not allowed to present the full details of his experiences at work because the Appeals Resolution Officer found them offensive. The applicant took particular exception to the conduct of the employer’s counsel, who is female. He made comments to her that the Appeals Resolution Officer found offensive. The applicant believes that the Appeals Resolution Officer’s objections to such comments demonstrated discrimination. The applicant also alleges that the Appeals Resolution Officer demonstrated discrimination by refusing the applicant’s request that various individuals be subpoenaed, including the grievance arbitrator and union officials.
Does the Tribunal have jurisdiction to deal with the allegations in the Application?
10In this case, the applicant makes two general allegations. First he alleges that the decision of the Appeals Resolution Officer is wrong and reflects discrimination against him because he is a disabled man. He claims that he is entitled to benefits under the WSIA and that the reason he was denied is that the Appeals Resolution Officer discriminated against him. Secondly, the applicant alleges that the Appeals Resolution Officer discriminated against him during the hearing by not allowing him to produce evidence and ask certain questions, and that this too was because of discrimination on the basis of sex.
11The respondents submit that the Tribunal does not have jurisdiction to deal with the Application because the decision of the Appeals Resolution Officer was an adjudicative decision, and the Tribunal has found that the content and reasons of a statutory adjudicator in not a service for the purpose of section 1 of the Code, which provides:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
12Baird v. Workplace Safety Insurance Appeals Tribunal, 2009 HRTO 99 (“Baird”) was an early Decision of the Tribunal dealing with the question of the extent to which the statutory decision making process of another tribunal is a service for the purpose of the Code:
While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.
13In Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”), the Tribunal dealt with allegations that the arbitrator appointed to hear an applicant’s return to work grievance conducted a mediation which resulted in the settlement of his grievance in a way that violated his human rights. The Tribunal concluded (at paragraphs 72-74):
The “service” is the dispute resolution process. Where an individual has a dispute, and pursuant to a statute or contract, that dispute may be referred to dispute resolution, the process is a service within the meaning of the Code. The requirement in section 1 of the Code is that every person should have a right of equal access to the dispute resolution process, and be able to participate in an effective, meaningful way, without discrimination and regardless of a proscribed ground.
In relation to disability, the obligation placed on the service provider may include, for example, the requirement to provide an accessible built environment or a hearing or mediation facility which is physically accessible, subject to the defence of undue hardship. The right to equality in the provision of services may also mean accommodation in the way materials (including decisions) are provided, and the proceeding is conducted, so as to enable a party, counsel or witness to effectively participate in the hearing or mediation process.
The right under section 1 to equal treatment in the provision of services relates to access to the decision-making or mediation process, not the outcome.
14In Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 (“Zaki”), the Tribunal discussed the difference between an allegation that a person had been unable to access benefits and services from a statutory body and an allegation that an adjudicative decision itself is wrong because of discrimination. The Tribunal concluded that the provision of the benefit is a service, but the content, reasons or result of an administrative decision maker is not a service:
[T]he Tribunal must examine whether the claim is exclusively about the adjudication or decision or whether the applicant is making a claim about his or her inability to obtain benefits or other services from the respondent. In the latter case, while there is a statutory decision involved, the provision of the benefit or privilege is a “service” within the meaning of s. 1 of the Code, and the applicant may argue that he or she has experienced discrimination in the provision of that service. However, the content of the decision itself is not a service within the meaning of the Code. It is not the content of the decision or reasons that is the alleged violation of the Code, but the alleged inability of the applicant to obtain the services, but for the alleged discrimination.
This is not to say that an institution that provides dispute resolution, including adjudication, can never be found to have violated section 1. There may be cases in which the manner in which the institution provides aspects of its services amounts to discrimination on a ground in the Code. However, in those cases, the claim against the institution cannot be that the decision is wrong, that the adjudicator failed to reach the appropriate outcome because he or she misapplied the Code or human rights jurisprudence, or that the result was different because of discrimination.
15Statutory bodies like the WSIB provide benefits and services. As noted in Zaki and Hazel, the provision of these benefits and services is a “service” for the purposes of the Code. The WSIB also adjudicates claims and offers dispute resolution services (for example to facilitate a worker’s return to work). Adjudication and dispute resolution are also “services” for the purposes of the Code. However, the result of the adjudication in a particular case is not a service for the purpose of the Code.
16In Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765 (“Dopelhamer”), the Tribunal took a different view of the definition of “services”. That Decision found that the definition of “services” in the Code could include the content of an adjudicative decision. The Vice-chair in Dopelhamer noted that the Code is a quasi-constitutional statute and that the legislature would have to use very clear language to limit the ambit of what is meant by “services”.
17In Dopelhamer, the Tribunal noted (at paragraphs 29 – 32) that there are several examples where the Code has been held to apply to decisions of adjudicative bodies:
Decisions made by statutory decision-makers have been held to be within the ambit of “services” as defined in human rights legislation. An example is British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) 1999 CanLII 646 (S.C.C.), [1999] 3 S.C.R. 868, 1999 CanLII 646. In that case, the refusal of a driver’s license by the British Columbia Superintendent of Motor Vehicles was successfully challenged under that province’s Human Rights Act. In Tranchemontagne v. Ontario(Director, Disability Support Program), 2006 SCC 14 (“Tranchemontagne”), which dealt with the obligation of statutory tribunals other than this Tribunal to apply the Code, the “service” at issue was a statutory administrator’s denial of ODS benefits. Ontario (Human Rights Commission) v. Ontario 1994 CanLII 1590 (ON C.A.), (1994), 19 O.R. (3d) 387 (C.A.), involved an ultimately successful challenge under the Code to the decision of an administrator under the Ministry of Health's Assistive Devices Program.
The Hon. Peter Cory, sitting as a member of this Tribunal in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 found that a Coroner’s decision on whether to grant an inquest was a “service”. Mr. Cory defined “services” as follows at para. 22:
…“service” must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.
The Ontario Divisional Court confirmed that definition: Braithwaite v. Ontario (Attorney General) (2007), rev’d on other grounds, 88 O.R. (3d) 455, 2007 CanLII 56481 (Div. Ct.) at para. 40.
Earlier, in Peel Board of Education v. Ontario Human Rights Commission (1990), 1990 CanLII 6605 (ON HCJ), 72 O.R. (2d) 593, [1990] O.J. No. 322 (Div. Ct.), the applicant board of education had sought an interpretation of s. 1 of the Human Rights Code, 1981, S.O. 1981, c. 53, that would exclude education and educational services from the application of the right to equal treatment with respect to services, goods and facilities. The Court denied the application, holding that there is no reason or justification for reading section 1 restrictively:
Applicant's counsel submits that s. 1 should be read to exclude education, and in effect, educational services. We are not persuaded that this section should be read in a restrictive fashion. Specifically, we are not persuaded that education is not a service or facility within the meaning of that section. There is nothing in the section itself that would justify such a restrictive interpretation. The words themselves are broad and general and unqualified by anything in the section. There is, moreover, nothing in the statute itself that would require such a confinement of the meaning of these general terms….As to the other submission that the Education Act, R.S.O. 1980, c. 129, as amended, is a complete code, we note the provision in the Human Rights Code, 1981, namely s. 46, which expresses the marginal note, that is, giving theHuman Rights Code, 1981 primacy over other legislation.
See also the decision of a three-member panel of this Tribunal in Hogan v. Ontario (Ministry of Health & Long-Term Care), 2006 HRTO 32, which held that the express exclusion of fees, levies and taxes and periodic payments imposed by law implies that “the definition and the list, which identify the specific objects that are precluded from being services, are exhaustive” (at para. 16).
18The cases cited in Dopelhamer in support of the proposition that the Tribunal has jurisdiction over decisions of statutory decision makers arose out of a challenge to policies that had been established by the statutory body charged with administering a statute or, as in Braithwaite, to a provision of the statute itself and/or the interpretation of the statute. In those types of cases, the allegation is that the law, policy or practice is discriminatory because it denies a benefit or service to a category of person based on a Code-protected ground.
19In my view, there is an important difference between those decisions of a statutory decision making body such as the WSIB which establish policies and guidelines, and the adjudicative decisions of its staff in regard to a particular case. The former type of decision making involves a general exercise of discretion in regard to the interpretation of a statute by the institution. If that results in the denial of a benefit or service to categories of people based on a Code-protected ground, the Tribunal might have concurrent jurisdiction with the other statutory decision making body to hear a challenge to the policy or guideline under the Code.
20A recent example of this sort of case is Ball v. Ontario (Community and Social Services), 2010 HRTO 360, in which the Tribunal considered whether provisions of the special diet program, established under the Ontario Disability Support Program and the Ontario Works program, are discriminatory because certain disabilities are treated differently than other disabilities.
Analysis of the allegations in this case
21I agree with the conclusion in Baird, Zaki, Hazel, and the other decisions of the Tribunal that have followed the reasoning in those decisions, that the content and reasons of an adjudicative decision in a particular case is not a “service” for the purpose of section 1 of the Code and that, as a result, the Tribunal does not have jurisdiction to deal with an allegation that an adjudicative decision in a particular case is wrong. I therefore conclude that the Tribunal does not have jurisdiction to deal with the allegation that the decision of the Appeals Resolution Officer is wrong because of discrimination.
22The applicant also alleges that he experienced discrimination during the hearing process. He alleges that the Appeals Resolution Officer did not allow him to call evidence and did not allow him to ask certain questions. He alleges that he would have been allowed to call the evidence and ask the questions if he were a woman and so alleges that he experienced differential treatment because of his sex.
23In my view, in this case, the Appeals Resolution Officer’s decisions and rulings about what evidence to hear and what questions to permit were an integral part of the adjudicative decision making process. In the context of an adjudicative hearing, it is necessary to make judgements about the relevance of evidence and whether it is appropriate or necessary to hear more evidence. In my view, in this case, the adjudicator’s rulings and the rationale for those rulings were part of the adjudicative decision making process that the Appeals Resolution Officer had to engage in to come to the final adjudicative decision on the merits of the applicant’s objection. I therefore find that the allegations about the conduct of the hearing are not allegations that relate to a “service” within the meaning of the Code and that the Tribunal.
24For these reasons, I find that the Tribunal does not have jurisdiction to deal with the Application and it is dismissed for that reason.
Dated at Toronto, this 26^th^ day of January, 2011.
”signed by”______________
Brian Cook
Vice-chair